Is permission needed to retweet hot news?

Copyright law doesn't cover facts or ideas... except when they are "hot news …

When an aggregator like Google News publishes newspaper headlines, is the company treading on thin ice? What about aggregators that publish headlines and a one-line excerpt? What about those that simply rewrite the facts contained in the story and publish a new account in their own words?

Newspapers have long objected to these practices, arguing that they dilute the value of their own work. Case in point: last month, Laura Malone of the Associated Press appeared at a Federal Trade Commission conference on the future of news and told the assembled audience (read the transcript PDF):

What we're talking about is news-aggregation sites where they take headline and lead, which can be, if it's a well-written lead and a well-written headline, the way they teach in "J" schools and the way most news organizations teach their reporters, that's the heart of the story, and the way people consume their news is to look at the top two or three things, read real quickly, move on to the next article. They're not... clicking through to the original source to read the entire detailed 'graph 4, 'graph 5, 'graph 6. They've got what they need in the headline and the lead, which can be one or two 'graphs. And that is supplanting what's happening out there with people not going to "The New York Times" because they're reading it on Google News or they're not going to "The Washington Post" 'cause they're reading it aggregated somewhere else.

And I think that there is a problem with that. We do need to be able to say that we, the content owners, we, the copyright owners, get to set the parameters by which people can republish our stuff. If people want to build sites based on the news that is published by any of the news organizations, that's great. We'll give them a license. Licenses are not difficult to get, and they're not terribly expensive.

The argument here is about copyright law, since the sites in questions are reproducing verbatim headlines and leads. The key defense would be "fair use," though it's not clear exactly where its limits would be.

But think about our third question above, the one involving rewrites. These don't implicate copyright law, since nothing is being copied excepts the facts from the original article—and copyright law famously does not extend to facts and ideas.

Yet it's easy to see what might happen. One company might sit back, read AP stories, and simply rewrite them and market the new stories as its own, all without doing the work of actual reporting. This famously happened during World War I, and it lead to the Supreme Court's finding of a "hot news" right for journalists. In essence, the right does protect facts and ideas for a limited time in order to prevent rampant freeloading in breaking news stories.

My news is hotter than yours

We've written extensively about "hot news" in the past. The doctrine has never gone away, though it has always been quite limited (New York state is one of the few places it is regularly recognized by the courts). It sounds like something archaic, but think for a moment how it might apply to bloggers, aggregators, Facebook posters, and even Twitter users today. If you think this stuff doesn't matter to the news business, then you haven't been paying attention. This isn't about copyright; it's about control of the facts.

Laura Malone again:

[Hot news] protects people. It protects the news organizations who are sending their reporters out at a cost, and that cost is not just dollars and cents, that cost is also lives, that there are people who are sitting in their homes at their computers, reading what the AP has reported, at a cost, and retyping it, sending it, and reselling it, so there's the free writing that happens. There are direct competitors—the Associated Press losing its customers because they were able to purchase it at a lower cost from the person who sat in his living room and retyped the stories and stripped the Associated Press' credit off it... We're gonna put fewer reporters out in the field. We're gonna have fewer people and fewer bureaus out there. We're gonna have fewer people to read those three Chilean reports, those three Chilean reports that were gotten by people who were there on the site doing original sourcing and doing original reporting. So, I don't think it's just a footnote, though I do put it in my copyright-infringement letters, as well. I rely very heavily on hot news misappropriation.

This is a fascinating response. Malone is reacting to a comment from Harvard prof Yochai Benkler, who pointed out that having any sort of right over the facts, even for limited times, posed problems for everyone.

"This beguiling idea of permissions everywhere—permissions for whom?" he said. "When a New York Times reporter who knows Spanish reads three newspapers from Chile and puts together insight about what is going on in the earthquake and how people think—permissions? When any reporter sits, combines what they hear with seven other reports they've listened to—permissions? You want to live in a permissions system that facts are permitted? It is—that is exactly the point about the fact-expression dichotomy. We exist in a world where facts are, as Justice Brandeis put it, in the same case.... Facts, as Louis Brandeis said, should be free as the air to common use. We do not have a permissions system for breathing."

In defending her organization's right to control facts, Malone argued that "original reporting" would dry up without a "hot news" right. But she then gives an example of such "original" reporting a newspaper who sends a reporter to Chile to read Spanish-language newspapers... which is exactly Benkler's point. The AP wouldn't be allowed to rewrite those original accounts without permission or without waiting some indefinite time period; the "hot news" right it wants could also extend to those Chilean papers.

James Boyle, a Duke prof who has written extensively on the public domain, was also on the FTC panel, and he argued against any new federal hot news right, despite current talk about writing one into US law. Two weeks later, he took to the pages of the Financial Times to sum up his argument more cogently, in a piece well worth clicking through to read.

So the new right would have no effect on the real problem newspapers face. And it would give them almost no protection that they do not already have either through law or technology. What would it do? It would cast a pall of fear over free speech. Is my blog or twitter feed allowed to say that there has been an earthquake or that some political scandal has erupted? Or must I buy a license to say so? After all, in the new world bloggers are “competitors” as news sources.

In fact, the right would produce all kinds of effects the newspapers have not thought about. They are assuming that this new right will only be wielded by them. Not so. Think of political activists who break a story—for example the young conservative filmmakers who produced devastating information on the operation of the organization ACORN. They are a news source. They might think it was a great idea selectively to decide which news organizations got to report that story, at least as long as it was “hot.” Does that sound attractive? I think not. And then think of the difficulties of proof, the possibility of chilling of speech by wrongly claiming to be its source. Implementation would be a nightmare.

These are tricky and fascinating questions, but in Boyle's view, hot news is the "next bad thing." Enforcement of existing rights is the way to go, and news organizations can opt out of most reputable aggregation sites by some simple changes to robots.txt. Why layer a new right on top of that, one which turns facts into a permission-based system?

Keep an eye on the "hot news" debate. As pressure continues to mount on the news business, expect the drumbeat for additional rights to grow louder in DC.

62 Reader Comments

Yesterday the New York Times ran a story in their top spot on nytimes.com about the earthquake in Mexico. This story cited not one, not even just two, but *four* reports from Twitter. Was that hot news? DId the New York Times steal it from Twitter? From the users of Twitter? Or not at all?

"...the Associated Press losing its customers because they were able to purchase it at a lower cost from the person who sat in his living room and retyped the stories and stripped the Associated Press' credit off it... We're gonna put fewer reporters out in the field. We're gonna have fewer people and fewer bureaus out there."

This doesn't make any sense for a couple of reasons. Anyone wanting the full story would still have to go to the AP article. Just because a snippet or summary of the story appeared on Twitter or Google News, it doesn't mean people aren't going to look for the full details from the original article. Additionally, if the quoted scenario is true, then the "person who sat in his living room" will also suffer since there's less source material for them to repost, and at some point the balance would have to tip back towards those creating the original content.

The article lists some good reasons why this is a bad idea, but I think it's worse than that. The problem with hot news on the internet is that competition in news is legion. You can't stop all of your competitors from reporting a story entirely, that isn't the point of this. The point isn't that if you go to Chile and report on the earth quake, nobody else can go to Chile and report on the earth quake. But if that's the case then you're sunk: There are a multiplicity of competitors who will report the story, whether they went there, or their cousin lives there and they talked on the phone, or whatever. And at least some of them are going to waive any license fee they could have charged Google News in order to be the main link for the story.

That's the problem right there: If you charge to be linked to, Google can respond by linking to someone else reporting the same story who doesn't charge anything. The only way to get linked to by Google will be to not charge them for the privilege, because otherwise there will be a line around the block to take your place for free. So that's the real problem with this: Forget about all the problems it causes, it won't even allow you to charge the money you want to charge.

Would she like us to pay royalties when we tell a friend about a current event over coffee?Would she like news agencies to compete for exclusivity over major events? (Imagine: "9/11 - Only on CNN")

Umm, yes.

She's from the same camp as the MPAA and RIAA shills that tell you how ripping your own films or audio for the purposes of format shifting (for yourself only, not for distribution among friends or on-line) is in fact illegal copyright infringement tantamount to theft. Even though it's clearly fair use under the law.

It's just more dinosaurs trying to prop up failing business models instead of adapting with the times. Like it or not, you might not be able to maintain the same profit margins now that digital distribution has eliminated scarcity from many old business models. Instead of adapt, they want legislation.

The difference here is that legislation allowing a copyright on current events will harm the public at large. Yes, copyright the exact text of a press release, but don't you dare suggest I can't talk about an factual event like the recent earthquake in Cali and Mexico or other important current events! That's not tantamount to censorship, it is censorship at a frightening level.

Google News honors robots.txt, and Google has repeatedly let people know this. Any news organization can take itself off of Google News immediately, but they don't want to; they'd lose page views (and therefore ad revenue) and influence. They'd love to try to come up with a way to force Google to give them money, but they are currently granting Google permission to do exactly what they are doing.

Google News honors robots.txt, and Google has repeatedly let people know this. Any news organization can take itself off of Google News immediately, but they don't want to; they'd lose page views (and therefore ad revenue) and influence. They'd love to try to come up with a way to force Google to give them money, but they are currently granting Google permission to do exactly what they are doing.

There are direct competitors—the Associated Press losing its customers because they were able to purchase it at a lower cost from the person who sat in his living room and retyped the stories and stripped the Associated Press' credit off it.

You mean like Gizmodo and Engadget?

Yes, I know, they do give credit by putting a link to their source at the end of their lead image plus the paragraph or two of retyping whatever the news is, but it does seem to have parallels to this, especially one tech nerds can understand.

If I started a tech website that did nothing but retype other hardware website's conclusions about hardware review, stole one of their pictures from the review, and slapped a link at the end of it, I'd feel shitty about that. (at least when I do it, I add some "value-added information" - running the numbers on a new battery type to see if its pie-in-the-sky or if its not too far off from being possible).

Huh, apparently there's no money in information. Even less when the information is known my by a select few...whooda thunk it? I always bought into that information is power maxim but apparently my buddies at the AP disagree.

Hold on. Total plagiarism I could understand, but wouldn't retweeting news just send more traffic to the news company? There's only so much you can fit into 140 characters.

You assume that the papers understand "traffic = income". In their world, people come to their websites all by themselves, or something - maybe it's me who doesn't get it.I guess that in the 1920ies, publisher enforcer squads beat up the paperboys on the street for screaming out the headline - after all the little punks ruined the "hot news" advantage and drove paper sales into the ground.It's the same reason paper stands cover up all front pages and sell papers in brown bags only.

"Two weeks later, he took to the pages of the Financial Times to sum up his argument more cogently, in a piece well worth clicking through to read."

Funny, I clicked through to the "article" linked, accepted a load of cookies from the site, and ran into a registration wall. That wall is a great example of things a lot of news sites do that keep me from getting news at their site. (I know the FT isn't the object of this article, but still...)

I own the complete alphabet, for any language past - present - or future. If any one wants to buy a license, (in her words) "We'll give them a license. Licenses are not difficult to get, and they're not terribly expensive."

Sounds stupid doesn't it?

She assumes that what she does is unique, and it is to a certain extent, but how do you own something that belongs to everyone? The press (and the rest of the media) are very quick to point out they have a "right" to pry into someones life, or hound someone to death (paparazzi and Pricess Di), or basically "stalk" a celebrity, or even basically do things that non-press would be arrested for, all in the name of "The people have a right to know". Well, if the people have a right to know then that right belongs to the people. So basically she is saying that she wants control over that right, which basically removes it from the people. My own opinion is if the press can use the "people have a right to know", then it doesn't belong to the press. The press survived these years because of the dissemination of news, not because they controlled when and where someone could get the news. A free press is essential to freedom and society, it is one of the very foundations of those things, yet she seeks to restrict or curtail when and where people can get their news, she seeks to undermine the very reason for her existance to begin with? It just does not make sense. What part of "free press" does she not understand?

Although I certainly agree there should be protections for a free press, I do not agree those protections should include being able to stiffle, control, or decide, the peoples right to the news and access to that free press no matter what outlet they use to get that news.

this reminds me of a small town rift between the news paper and radio station's reporting of school and civic events. the news paper thought the radio station should delay their news, it didn't happen.

while almost as weird as the idea of a delay for the aggregaitors' misappropreation.... government control could not stop election riot e-news from Iran

so when one heard "from the KWIX news room and the wires of the associated press"no one told it was a closit with a telex machine. rip & read is not newjust who pays and how

Get ready for more and more of this nonsense. The news organizations are struggling with revenue streams, aren't flexible, and don't like nor understand online culture. They are going to push and push like the RIAA did, does, and will continue to do.

The news organizations, like the **AA, are giving lots of money in the form of campaign contributions, bribes, hookers, and drugs to the elected officials and government agencies in order to prop up their business model. Why don't they do something themselves? all that money could be used to find new ways to innovate and live in the current world.

It's really funny that Obama castigates the government of Afghanistan that they are not doing enough about corruption when at the same time our government is being corrupted by the multitude of bribes from the content and entertainment industries.

Hold on. Total plagiarism I could understand, but wouldn't retweeting news just send more traffic to the news company? There's only so much you can fit into 140 characters.

You assume that the papers understand "traffic = income". In their world, people come to their websites all by themselves, or something - maybe it's me who doesn't get it.I guess that in the 1920ies, publisher enforcer squads beat up the paperboys on the street for screaming out the headline - after all the little punks ruined the "hot news" advantage and drove paper sales into the ground.It's the same reason paper stands cover up all front pages and sell papers in brown bags only.

People reading the headlines and first paragraph or two of the article on Google's news feed, is akin to the people who hang out at the magazine rack thumbing through an issue to see if it's worth buying.

If people aren't clicking through to read the rest of your article then the problem is with the article!

Although I'm sympathetic to the Free Speech aspect of things, and don't think that the underlying facts can be held as intellectual property, no one has addressed the consequence the NYT and other "old media" are trying to avoid: crap reporting. I think its somewhat unfair to just say to "old media", "Evolve or die" without giving some consideration if the substance of "old media" should change. And I've put "old media" in quotes this whole time because a better term, in my mind, is professional media. Reporters go to Journalism school to learn how to concisely summarize and deliver substantive news from a neutral point of view. There are real costs in paying for investigative journalism, or even just journalism that is of a higher quality than, "Dude! Earthquake! LOLZ!"

A subtlety in the AP v. INS case referred to in the article is that the "hot news" right is only applied between news competitors. The public was not a concern back then, because they weren't acting like news organs. Today, since the costs of publishing are next to zero, there is a fair legal argument that any "reporter", professional or amateur, should be prohibited from merely copying the story published by another reporter when that detracts from the economic interest / livelihood of the original author.

So, I like the idea of public domain, but what are we going to do about the quality of reporting? Should we have the federal government subsidize the news like the BBC in the UK? Would people prefer that the Chamber of Commerce or Greenpeace sponsor news broadcasts? I think, that to maintain the professional and (ideally) neutral tenor of the news, some concession to "old media" might be necessary. I don't like the idea of crowd-sourcing the news, I'd rather trust people who are paid to be neutral and who hold the honor of honest journalism close to their hearts.

Yesterday the New York Times ran a story in their top spot on nytimes.com about the earthquake in Mexico. This story cited not one, not even just two, but *four* reports from Twitter. Was that hot news? DId the New York Times steal it from Twitter? From the users of Twitter? Or not at all?

Good point. And what about CNN using twitters in their stories. They're very fast to take down any clips of their shows that appear on youtube, but seem to have no trouble pretty much just putting a twitter feed up on the TV screen behind the anchor and call it "news". Maybe twitter users should file a class action lawsuit to claim the money CNN owns them for stealing their original content.

Funnily enough, when you have a broadcaster with a public mandate (you can't say state controlled, unlike many European Countries, it's not that simple here) like the BBC, the rest of the media can't pull this stunt, because they'd simply be lowering their audience in their favour.

So, I like the idea of public domain, but what are we going to do about the quality of reporting? Should we have the federal government subsidize the news like the BBC in the UK? Would people prefer that the Chamber of Commerce or Greenpeace sponsor news broadcasts? I think, that to maintain the professional and (ideally) neutral tenor of the news, some concession to "old media" might be necessary. I don't like the idea of crowd-sourcing the news, I'd rather trust people who are paid to be neutral and who hold the honor of honest journalism close to their hearts.

Anyone have ideas?

If there is a value to professional reporting, then people will pay for it. As has been definitively shown by iTMS, you absolutely can compete with free, as long as you're providing something people are willing to pay for.

IMO, the problem the established news industry is facing isn't that their business model is dead, it's that the demand for it has shrunk. Since they are no longer the sole gatekeepers of information - and I'm convinced that is a good thing - the demand for the information they provide is now smaller than the supply they are accustomed to providing.

How many reporters do we need being paid to take pictures and report on the "news" from the red carpet at pick-your-award-ceremony? How many people do we need to provide advice columns in the paper? How many people do we need generating "the top ten things your man wants you to do naked" lists?

The reps from the news industry always talk about coverage of wars, natural disasters, national governments, etc. But I don't think that's the problem; I think that's the news people still turn to the NYT (WSJ, Tribune, etc) for. But the print news industry as a whole currently publishes a lot of content that really can be provided just as easily (or better!) by bloggers and the proverbial "man on the street."

Another weak attempt by an industry to abuse copyright law to try to save its ailing business model. There is a reason the idea-expression dichotomy exists in copyright law. Copyrighting ideas and facts gives the "owner" complete control over what someone might want to say about those ideas and facts. Sorry, "hot news" is BS. News is news (the idea of news, not a journalist's expression of that news), facts are facts, and neither are copyrightable.

A hospital faced a patent lawsuit because it used the fact that a reduced dosage of pills it had for one condition could be used to treat another one. If a law restricting the use of "hot news" were based on preventing unfair competition, instead of copyright law, it might be able to be framed so as not prevent public discussion of recent news events.

[...]Reporters go to Journalism school to learn how to concisely summarize and deliver substantive news from a neutral point of view. [...]

This may be why they go to school, but it doesn't survive contact with a real-world publishing house. Stories are anything but neutral. At the very least, stories are slanted to evoke emotion, because emotion is what keeps you going back for more, right? Do people really imagine the reporters are so stupid that they think that giving percentage increases give more information that giving concrete numbers and reference? The answer is "no", they aren't that stupid. They give percentages because saying a "100% increase in chance of cancer" generates more emotion than saying "chance of cancer increased from 1 in a million to 2 in a million".

Then add politics on top of that initial slanting and really, neutral?

skyywise wrote:

[...]So, I like the idea of public domain, but what are we going to do about the quality of reporting? Should we have the federal government subsidize the news like the BBC in the UK?

We're going to do what we always do (eventually), we're going to let the market decide. If the market decides that they want to pay more for "old media"-style reporting, then people will buy subscriptions to the New York Times/whatever and keep those businesses, well, in business.

If people decide that they'd rather pay nothing and put up with "LOLZ EARTHQUAKE"... well then that's what we get. My guess is that it will be a mix.

skyywise wrote:

I think, that to maintain the professional and (ideally) neutral tenor of the news, some concession to "old media" might be necessary. I don't like the idea of crowd-sourcing the news, I'd rather trust people who are paid to be neutral and who hold the honor of honest journalism close to their hearts.

Re-read what you wrote there, "paid to be neutral" and think about that a bit. Is the person being paid to be neutral able to be neutral to the desires of the entity that is paying them? Are the people paying the reporters neutral? Don't they want to stay in business, at the very least? Is there a standards body and/or a review process in place to assess reporting quality (from a neutrality/completeness perspective)?

In my opinion, you're asking us to prop up something that isn't at all what you imagine it to be.